Motion by Defendant Aldo U.S., Inc. for Summary Judgment:
The motion by Aldo U.S. Inc., for summary judgment is denied.
There are multiple triable issues of material fact as referenced below.
(a) The applicable written policy is disputed. Defendant contends that only ?bag checks? are directed, but plaintiffs point to broader language in defendant?s Security Manual providing ?It is the responsibility of the management team to verify all items in the possession of every associate each and every time they leave the store? (i.e. expressly not limited to ?bags?), and in defendant?s Operations Security Manual providing ?The Management team must verify all associate belongings when ? exiting the premises, and have their own belongings verified by team members regardless of their position? (i.e. again expressly not limited to ?bags?).
Further, defendant argues that the certified ?Class Definition? referencesonly ?bag checks? ? but no such limitation is reflected in this Court?s 9/24/14 Minute Order of the court in that regard.
The actual policy whether ?security check? or ?bag check? applied by defendant employer is disputed and presents a triable issue of fact.
(b) There is a material fact issue in dispute as to whether inspections were limited to bags only. Moving defendant insists that only bags are checked.? Plaintiffs argue otherwise ? i.e. there is a disputed issue of fact whether ?checks? were limited to ?bags?, or included ?security checks?, including pat-downs, and the like (even ?bagless employees? waiting while fellow employees went through their checks).
See the deposition of Mariana Guzman, and declaration of survey expert Mr. Roberts wherein he references that coats and other clothing were also examined in addition to bags, with over half of the checks occurring when employee had no possession to check. [See paragraphs 5 & 7 of the Roberts declaration.]
(c) Attacks on the accuracy, methodology, and reliability of the statements and opinions of Mr. Roberts, his survey, and communications during conduct of the survey, are more appropriately addressed by the trier-of-fact.? Also, it may be noted that 18-of-23 declarations submitted by defendant as to the limited nature of any ?checks?, are by managerial-level employees (Store Managers, Assistant Store Managers, and Sales Leads), who conduct those ?checks?, and one may infer from their declarations are certainly aware of the claims of this lawsuit.
(d) Whether job duties effectively require, as a practical matter, that employees carry ?bags? to work (to carry store keys, or ID badges), is disputed.? Defendant inconsistently suggests that store keys can be carried in a pocket, or be placed on a shelf at work, while at same time confirming that such keys are to be kept on the employee?s ?person? at all times (i.e. inferentially in reasonably safe place). Therefore triable issues of fact exist, as to whether employees may voluntarily choose to bring a bag, since some employees have store keys, and sometimes wear clothes without pockets, and some employees have name tags, many have cell phones, many bring lunches, or need wallet to go out to lunch, etc. [See the responding plaintiffs papers referencing declarations of Miranda Monugian, and Bevin Pike, and depositions of Pineda, Veronica Coria, and Mariana Guzman.
There can be no dispute that ?checks?, whether characterized as ?security checks?, or ?bag checks?, are not ?optional? as defendant argues in the sense that they are a clear condition of continued employment, in these circumstances.?? There can further be no dispute, that the defendant employer ?controls? the circumstances of those ?checks?, however they may be characterized.?? [See Morillion v. Royal Packing Co. (2000) 22 Cal 4th 575, 582, and Overton v. Walt Disney Co.(2006) 136 Cal App 4th 263, 271.? This is not a situation where an employee was offered the convenience of a shuttle bus ride in the parking lot, or required to be clean-shaven (i.e. shave before coming to work).? Here, the ?security checks? or ?bag checks?, as the case may be, were not ?optional? in the sense noted above, and occurred on-site, in the store.
Also, see generally responding Plaintiffs? Response to Separate Statement ? disputed items are Nos. 1, 2, 4, 5, 6, 7 and the evidence referenced therein including but not limited to the declaration? of Pike, the declaration of Roberts as well as? the declarations of Messiha, Ward, the Guzman deposition, and the Wallach deposition.
Determination of the above-described triable issues of fact, will decide whether Class Members have claims for uncompensated ?hours worked?, here.
Frlekin v. Apple, Inc., 2015 WL 6851424 (N.D. Cal. Nov. 7, 2015) is a non-binding, non-published, Federal Trial Court decision.
Furthermore, Wage Orders and statutes governing conditions of employment are to be construed broadly in favor of protecting employees, pursuant to? Murphy v. Kenneth Cole Products, Inc. (2007) 40 Cal 4th 1094, 1103, and Ramirez v. Yosemite Water Co., Inc. (1999) 20 Cal 4th 785, 794. This court is required to view all evidence and all inferences reasonably drawn, therefrom, in light most favorable to plaintiffs and the class, regarding? this motion, pursuant to? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal 4th 826, 843.
?Inasmuch as summary judgment is a drastic procedure and should be used with caution, the moving party?s papers are to be strictly construed while the opposing party?s papers are liberally construed.? [See Committee to Save Beverly Highland Homes Ass?n v. Beverly Highland (2001) 92 Cal. App. 4th 1247, 1260 (internal citations omitted).]
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(e) Responding plaintiffs? request that the court take judicial notice of the appeal of the Frelkin v. Apple Inc., case, pursuant to Evidence Code ?? 452-453, is granted.
(f) Defendant?s request for a continuance, to take the deposition of 200 ?survey participants?, is denied ? as there is no showing by defendant to indicate that any different conclusion can be reached here, even if that opportunity were afforded.
(g) Defendant?s formal evidentiary objections to deposition excerpts referenced in responding papers are overruled ? except sustained as to responding parties? reference to various websites.
Defendant?s formal evidentiary objections to declaration of plaintiff expert Mr. Roberts, and survey results attached, are overruled, with the court affording those comments the weight they deserve.
Plaintiff shall give Notice.